Professional Documents
Culture Documents
85
Case 2:04-cv-74932-ADT-DAS Document 85 Filed 10/06/2006 Page 1 of 9
CHARLES HADDAD,
INDIANA PACERS, an assumed name a/k/a PACERS Mag. Judge Donald A. Scheer
BASKETBALL CORPORATION, an Indiana corporation,
JERMAINE O’NEAL and ANTHONY JOHNSON,
Defendants.
______________________________________________________________________________
L.S. CHARFOOS (P11799) Potter, DeAgostino, O’Dea & Patterson
JASON J. THOMPSON (P47184) STEVEN M. POTTER (P33344)
Attorneys for Plaintiff Attorney for Indiana Pacers
5510 Woodward Avenue 2701 Cambridge Court, Suite 223
Detroit, Michigan 48202 Auburn Hills, Michigan 48326
(313) 875-8080/FAX 8522 (248) 377-1700/FAX 0051
WILLIAM D. TEMKO
JOSEPH YBARRA
Co-Counsel for Jermaine O’Neal
355 S. Grand Avenue, 35th Floor
Los Angeles, California 90071
(213) 683-9266
_____________________________________________________________________________
NOW COMES Defendant, INDIANA PACERS, by and through its attorneys, POTTER,
Dockets.Justia.com
Case 2:04-cv-74932-ADT-DAS Document 85 Filed 10/06/2006 Page 2 of 9
DeAGOSTINO, O’DEA & PATTERSON, and, pursuant to Fed.R.Civ.P. 60(b), move this Honorable
Court to Amend its Order Re: Testimony of Timothy R. Smith for the reasons set forth in the brief
In accordance withE.D. Mich. LR 7.1, counsel for Defendant Indiana Pacers contacted Plaintiff’s
counsel regarding the subject matter of this motion and was informed by counsel’s assistant that it was
Respectfully submitted,
2
Case 2:04-cv-74932-ADT-DAS Document 85 Filed 10/06/2006 Page 3 of 9
BRIEF IN SUPPORT OF
MOTION TO AMEND
ORDER RE: TESTIMONY OF TIMOTHY R. SMITH
Issue Presented
3
Case 2:04-cv-74932-ADT-DAS Document 85 Filed 10/06/2006 Page 4 of 9
Fed.R.Civ.P. 60(b)
4
Case 2:04-cv-74932-ADT-DAS Document 85 Filed 10/06/2006 Page 5 of 9
Background
The instant action arises out of the incident that occurred at the Palace of Auburn Hills on
November 19, 2004 during the basketball game between the Detroit Pistons and the Indiana Pacers.
Plaintiff filed a Motion in Limine to exclude a written report prepared by Timothy R. Smith, Director of
Event Operations, as well as the testimony of Mr. Smith. Defendants responded to the motion and a
hearing regarding the motion was held on September 18, 2006. At the conclusion of the hearing the
Court granted the motion in part and denied the motion in part. The Court held that the written report
prepared by Mr. Smith would not be admitted in this matter but that Mr. Smith would be permitted to
testify and the Court would address objections to his testimony at the time of trial.
On September 20, 2006, Plaintiff’s counsel sent a proposed order regarding the motion in limine
to defense counsel. The sentence of the proposed order that is at issue reads:
For the reasons stated on the record, the Court grants Plaintiff’s Motion as to the written
document, but denies the Motion as to testimony of Timothy R. Smith related to the
Palace Incident on November 19, 2004.
The following day the undersigned contacted counsel for Defendant O’Neal and discussed the
language of the proposed order to verify that the Court did not limit Mr. Smith’s testimony to “the Palace
Incident on November 19, 2004.” On September 21, 2006, the undersigned sent a letter to Plaintiff’s
counsel which is attached as Exhibit A. The letter sets forth counsel’s objection to the inclusion of the
phrase “related to the Palace incident on November 19, 2004.” The letter also sets forth that Defendant
O’Neal’s counsel concurs in the objection. Counsel requested that Plaintiff’s counsel revise the proposed
order and provide him with the new proposed order. Included as part of Exhibit A is the “Fax
5
Case 2:04-cv-74932-ADT-DAS Document 85 Filed 10/06/2006 Page 6 of 9
Transmission” cover sheet and the “Broadcast Confirmation Report” verifying that Plaintiff’s counsel
After being advised by the Court’s case manager on October 3, 2006 that the Court was still
awaiting an Order regarding Plaintiff’s Motion in Limine, counsel’s office contacted Plaintiff’s counsel’s
office to inquire as to the status of the revised proposed order and if the requested language had been
removed from the proposed order. Plaintiff’s counsel’s office indicated that it did not have a record of
receiving the September 21, 2006 correspondence concerning the Order Re: Testimony of Timothy R.
Smith (Exhibit A). On the morning of October 3, 2006, counsel again sent the letter to Plaintiff’s counsel
via facsimile (Exhibit B, “Fax Transmission” and “Message Confirmation” pages). The “Message
Despite sending its objection to the proposed order to Plaintiff’s counsel on two occasions and
discussing the objection with Plaintiff’s counsel’s assistant on October 3, 2006, Plaintiff’s counsel
submitted Plaintiff’s proposed Order Re: Testimony of Timothy R. Smith as originally drafted. The
automatically generated email to Plaintiff’s counsel regarding the proposed order was sent at 5:11 p.m.
on October 3, 2006. The submission of the proposed order was forwarded to defense counsel at 5:44
p.m. Incredibly, Plaintiff’s counsel states on the submission to the Court that the order was submitted “to
defense counsel on September 20, 2006 with the opportunity to accept, reject, or modify, with no
objection as of today’s date” (Exhibit C). On the morning of October 4, 2006, Defense counsel
contacted Pat Cotton at the number listed in the email and left a voicemail inquiring as to why the
requested change to the order was not made. The voicemail received in response indicated that the Court
had already entered the Order and that the undersigned would have to file objections to the order.
6
Case 2:04-cv-74932-ADT-DAS Document 85 Filed 10/06/2006 Page 7 of 9
Defendant then confirmed that the Order had been entered by the Court as originally drafted (Exhibit D).
Defendant has filed the instant motion pursuant to Fed.R.Civ.P. 60(b), seeking to have the Order Re:
Testimony of Timothy R. Smith amended in accordance with the objection set forth in the September 21,
Argument
The decision to grant a Motion under Fed.R.Civ.P. 60(b) is within the sound discretion of the
Court. Johnson v. Unknown Dellatifa, 357 F.3d 539, 542 (6th Cir. 2004). Rule 60(b) permits a district
court to grant a motion for relief from the judgment for any of the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence
which by due diligence could not have been discovered in time to move for a new trial
under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic),
misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5)
the judgment has been satisfied, released, or discharged, or a prior judgment upon which
it is based has been reversed or otherwise vacated, or it is no longer equitable that the
judgment should have prospective application; or (6) any other reason justifying relief
from the operation of the judgment.
In this case, Defendants seek to amend the Order entered October 4, 2006 on the basis of either
mistake, inadvertence, or fraud. At a minimum, a mistake was made by Plaintiff’s counsel when it failed
to incorporate Defendant’s objection to the proposed order that was sent to counsel’s office on
September 21, 2006 and October 3, 2006. Another view would be that Plaintiff’s counsel inadvertently
failed to realize that Defendant had sent an objection to the proposed order and submitted the originally
proposed order unaware of the objection. A third view would be that Plaintiff’s counsel received the
objection but submitted the proposed order to the Court with the misrepresentation that no objection had
been received (Exhibit C). The Court then relied on Plaintiff’s misrepresentation and entered the order.
7
Case 2:04-cv-74932-ADT-DAS Document 85 Filed 10/06/2006 Page 8 of 9
The misrepresentation was made to Defendant’s detriment because Defendant is now forced to seek an
amendment of an entered order under Fed.R.Civ.P. 60(b) rather than discuss its objection with opposing
counsel or the Court prior to entry. Any one of these scenarios justify the amendment of the Order Re:
The requested relief is appropriate because the party responsible for the mistake and/or fraud is
Plaintiff, not the party seeking to amend the Order. Defendants responded in a timely fashion to Plaintiff’s
proposed order when a letter was sent the following day setting forth an objection to the language of the
proposed order. The letter was addressed to counsel of record for Plaintiff and Defendant should not
be prejudiced because Mr. Charfoos was out of the office and his mail was not reviewed and forwarded
to the appropriate attorney. Moreover, Defendant’s objection to the proposed order was sent a second
time prior to Plaintiff’s submission of the order to the Court, yet this transmission was also ignored.
Defendant should not be prejudiced as a result of Plaintiff’s counsel’s failure to read incoming facsimile
correspondence.
The alternative view is that Plaintiff’s counsel intentionally failed to acknowledge Defendant’s
objection to the proposed in an effort to improperly limit Mr. Smith’s testimony in this matter. Plaintiff
is aware that Mr. Smith’s testimony will not be helpful to his case and improperly tried to limit that
testimony by adding language into the order that is contrary to the Court’s ruling. To accomplish this goal
Plaintiff made a false statements to the Court indicating that no objections had been received and by the
time Defendant became aware of the misrepresentation made to the Court, the Order had already been
entered. Regardless of whether Plaintiff’s conduct falls on the side of mistake, inadvertence or fraud, the
8
Case 2:04-cv-74932-ADT-DAS Document 85 Filed 10/06/2006 Page 9 of 9
WHEREFORE, Defendant respectfully requests that this Honorable Court grant its Motion to
Amend Order Re: Testimony of Timothy R. Smith and enter an Order revising the last sentence to state:
“For the reasons stated on the record, the Court grants Plaintiff’s Motion as to the written document, but
Respectfully submitted,
CERTIFICATE OF SERVICE
I hereby certify that on October 6, 2006, I electronically filed the foregoing paper with
the Clerk of the Court using the ECF system which will send notification of such filing to
the attorneys of record to this cause of action.